A BILL to amend and reenact §49-6-3 and §49-6-5 of the Code of West
Virginia, 1931, as amended, all relating to making the
commission of sexual assault or sexual abuse an additional
consideration a judge may use in issuing an order to
temporarily or permanently end a parent-child relationship.

Be it enacted by the Legislature of West Virginia:

That §49-6-3 and §49-6-5 of the Code of West Virginia, 1931,
as amended, be amended and reenacted, all to read as follows:

(a) Upon the filing of a petition, the court may order that
the child alleged to be an abused or neglected child be delivered
for not more than ten days into the custody of the state department
or a responsible person found by the court to be a fit and proper
person for the temporary care of the child pending a preliminary
hearing, if it finds that:

(1) There exists imminent danger to the physical well-being of
the child; and

(2) There are no reasonably available alternatives to removal
of the child, including, but not limited to, the provision of
medical, psychiatric, psychological or homemaking services in the
child's present custody: Provided, That where the alleged abusing
person, if known, is a member of a household, the court shall not
allow placement pursuant to this section of the child or children
in said home unless the alleged abusing person is or has been
precluded from visiting or residing in said home by judicial order.
In a case where there is more than one child in the home, or in the
temporary care, custody or control of the alleged offending parent,
the petition shall so state, and notwithstanding the fact that the
allegations of abuse or neglect may pertain to less than all of
such children, each child in the home for whom relief is sought
shall be made a party to the proceeding. Even though the acts of
abuse or neglect alleged in the petition were not directed against
a specific child who is named in the petition, the court shall
order the removal of such child, pending final disposition, if it
finds that there exists imminent danger to the physical well-being
of the child and a lack of reasonable available alternatives to
removal. The initial order directing such custody shall contain an
order appointing counsel and scheduling the preliminary hearing,
and upon its service shall require the immediate transfer of
custody of such child or children to the department or a
responsible relative which may include any parent, guardian, or
other custodian. The court order shall state:

(1)(A) That continuation in the home is contrary to the best
interests of the child and why; and

(2)(B) Whether or not the department made reasonable efforts
to preserve the family and prevent the placement or that the
emergency situation made such efforts unreasonable or impossible.
The order may also direct any party or the department to initiate
or become involved in services to facilitate reunification of the
family.

(b) Whether or not the court orders immediate transfer of
custody as provided in subsection (a) of this section, if the facts
alleged in the petition demonstrate to the court that there exists
imminent danger to the child, the court may schedule a preliminary
hearing giving the respondents at least five days' actual notice.
If the court finds at the preliminary hearing that there are no
alternatives less drastic than removal of the child and that a
hearing on the petition cannot be scheduled in the interim period,
the court may order that the child be delivered into the temporary
custody of the department or a responsible person or agency found
by the court to be a fit and proper person for the temporary care
of the child for a period not exceeding sixty days: Provided, That
the court order shall state:

(1) That continuation in the home is contrary to the best
interests of the child and set forth the reasons therefor;

(2) whether or not the department made reasonable efforts to
preserve the family and to prevent the child's removal from his or
her home;

(3) Whether or not the department made reasonable efforts to
preserve the family and to prevent the placement or that the
emergency situation made such efforts unreasonable or impossible;
and

(4) What efforts should be made by the department, if any, to
facilitate the child's return home: Provided, however, That if the
court grants an improvement period as provided in section twelve of
this article, the sixty-day limit upon temporary custody is waived.

(c) If a child or children shall, in the presence of a child
protective service worker, be in an emergency situation which
constitutes an imminent danger to the physical well-being of the
child or children, as that phrase is defined in section three,
article one of this chapter, and if such worker has probable cause
to believe that the child or children will suffer additional child
abuse or neglect or will be removed from the county before a
petition can be filed and temporary custody can be ordered, the
worker may, prior to the filing of a petition, take the child or
children into his or her custody without a court order: Provided,
That after taking custody of such child or children prior to the
filing of a petition, the worker shall forthwith appear before a
circuit judge or a juvenile referee of the county wherein custody
was taken, or if no such judge or referee be available, before a
circuit judge or a juvenile referee of an adjoining county, and
shall immediately apply for an order ratifying the emergency
custody of the child pending the filing of a petition. The circuit
court of every county in the state shall appoint at least one of
the magistrates of the county to act as a juvenile referee, who
shall serve at the will and pleasure of the appointing court, and
who shall perform the functions prescribed for such position by the
provisions of this subsection. The parents, guardians or custodians
of the child or children may be present at the time and place of
application for an order ratifying custody, and if at the time the
child or children are taken into custody by the worker, the worker
knows which judge or referee is to receive the application, the
worker shall so inform the parents, guardians or custodians. The
application for emergency custody may be on forms prescribed by the
Supreme Court of Appeals or prepared by the prosecuting attorney or
the applicant, and shall set forth facts from which it may be
determined that the probable cause described above in this
subsection exists. Upon such sworn testimony or other evidence as
the judge or referee deems sufficient, the judge or referee may
order the emergency taking by the worker to be ratified. If
appropriate under the circumstances, the order may include
authorization for an examination as provided for in subsection (b),
section four of this article. If a referee issues such an order,
the referee shall by telephonic communication have such order
orally confirmed by a circuit judge of the circuit or an adjoining
circuit who shall on the next judicial day enter an order of
confirmation. If the emergency taking is ratified by the judge or
referee, emergency custody of the child or children shall be vested
in the department until the expiration of the next two judicial
days, at which time any such child taken into emergency custody
shall be returned to the custody of his or her parent or guardian
or custodian unless a petition has been filed and custody of the
child has been transferred under the provisions of section three of
this article.

(d) For purposes of the court's consideration of temporary
custody pursuant to the provisions of subsection (a) or (b) of this
section, the department is not required to make reasonable efforts
to preserve the family if the court determines:

(1) The parent has subjected the child, another child of the
parent, or any other child residing in the same household or under
the temporary or permanent custody of the parent to aggravated
circumstances which include, but are not limited to, abandonment,
torture, chronic abuse and sexual abuse;

(2) The parent has:

(A) Committed murder of the child’s other parent, guardian or
custodian, another child of the parent, or any other child residing
in the same household or under the temporary or permanent custody
of the parent;

(B) Committed voluntary manslaughter of the child’s other
parent, guardian or custodian, another child of the parent, or any
other child residing in the same household or under the temporary
or permanent custody of the parent;

(C) Attempted or conspired to commit such a murder or
voluntary manslaughter or been an accessory before or after the
fact to either such crime; or

(D) Committed unlawful or malicious wounding that results in
serious bodily injury to the child, the child’s other parent,
guardian or custodian, to another child of the parent, or any other
child residing in the same household or under the temporary or
permanent custody of the parent; or

(E) Committed sexual assault or sexual abuse of the child, the
child’s other parent, guardian, or custodian, another child of the
parent, or any other child residing in the same household or under
the temporary or permanent custody of the parent.

(3) The parental rights of the parent to another child have
been terminated involuntarily.

§49-6-5. Disposition of neglected or abused children.

(a) Following a determination pursuant to section two of this
article wherein the court finds a child to be abused or neglected,
the department shall file with the court a copy of the child’s case
plan, including the permanency plan for the child. The term case
plan means a written document that includes, where applicable, the
requirements of the family case plan as provided for in section
three, article six-d of this chapter and that also includes at
least the following: A description of the type of home or
institution in which the child is to be placed, including a
discussion of the appropriateness of the placement and how the
agency which is responsible for the child plans to assure that the
child receives proper care and that services are provided to the
parents, child and foster parents in order to improve the
conditions in the parent(s) home; facilitate return of the child to
his or her own home or the permanent placement of the child; and
address the needs of the child while in foster care, including a
discussion of the appropriateness of the services that have been
provided to the child. The term "permanency plan" refers to that
part of the case plan which is designed to achieve a permanent home
for the child in the least restrictive setting available. The plan
must document efforts to ensure that the child is returned home
within approximate time lines for reunification as set out in the
plan. Reasonable efforts to place a child for adoption or with a
legal guardian may be made at the same time reasonable efforts are
made to prevent removal or to make it possible for a child to
safely return home. If reunification is not the permanency plan
for the child, the plan must state why reunification is not
appropriate and detail the alternative placement for the child to
include approximate time lines for when such placement is expected
to become a permanent placement. This case plan shall serve as the
family case plan for parents of abused or neglected children.
Copies of the child’s case plan shall be sent to the child’s
attorney and parent, guardian or custodian or their counsel at
least five days prior to the dispositional hearing. The court
shall forthwith proceed to disposition giving both the petitioner
and respondents an opportunity to be heard. The court shall give
precedence to dispositions in the following sequence:

(1) Dismiss the petition;

(2) Refer the child, the abusing parent, the battered parent
or other family members to a community agency for needed assistance
and dismiss the petition;

(3) Return the child to his or her own home under supervision
of the department;

(4) Order terms of supervision calculated to assist the child
and any abusing parent or battered parent or parents or custodian
which prescribe the manner of supervision and care of the child and
which are within the ability of any parent or parents or custodian
to perform;

(5) Upon a finding that the abusing parent or battered parent
or parents are presently unwilling or unable to provide adequately
for the child’s needs, commit the child temporarily to the custody
of the state department, a licensed private child welfare agency or
a suitable person who may be appointed guardian by the court. The
court order shall state:

(A) That continuation in the home is contrary to the best
interests of the child and why;

(B) Whether or not the department has made reasonable efforts,
with the child’s health and safety being the paramount concern, to
preserve the family, or some portion thereof, and to prevent or
eliminate the need for removing the child from the child’s home and
to make it possible for the child to safely return home;

(C) What efforts were made or that the emergency situation
made such efforts unreasonable or impossible; and

(D) The specific circumstances of the situation which made
such efforts unreasonable if services were not offered by the
department. The court order shall also determine under what
circumstances the child’s commitment to the department shall
continue. Considerations pertinent to the determination include
whether the child should:

(i) Be continued in foster care for a specified period;

(ii) Be considered for adoption;

(iii) Be considered for legal guardianship;

(iv) Be considered for permanent placement with a fit and
willing relative; or

(v) Be placed in another planned permanent living arrangement,
but only in cases where the department has documented to the
circuit court a compelling reason for determining that it would not
be in the best interests of the child to follow one of the options
set forth in subparagraphs (i), (ii), (iii) or (iv) of this
paragraph. The court may order services to meet the special needs
of the child. Whenever the court transfers custody of a youth to
the department, an appropriate order of financial support by the
parents or guardians shall be entered in accordance with section
five, article seven of this chapter; or

(6) Upon a finding that there is no reasonable likelihood that
the conditions of neglect or abuse can be substantially corrected
in the near future and, when necessary for the welfare of the
child, terminate the parental, custodial and guardianship rights
and responsibilities of the abusing parent and commit the child to
the permanent sole custody of the nonabusing parent, if there be
one, or, if not, to either the permanent guardianship of the
department or a licensed child welfare agency. The court may award
sole custody of the child to a nonabusing battered parent. If the
court shall so find, then in fixing its dispositional order the
court shall consider the following factors:

(A) The child’s need for continuity of care and caretakers;

(B) The amount of time required for the child to be integrated
into a stable and permanent home environment; and

(C) Other factors as the court considers necessary and proper.
Notwithstanding any other provision of this article, the court
shall give consideration to the wishes of a child fourteen years of
age or older or otherwise of an age of discretion as determined by
the court regarding the permanent termination of parental rights.
No adoption of a child shall take place until all proceedings for
termination of parental rights under this article and appeals
thereof are final. In determining whether or not parental rights
should be terminated, the court shall consider the efforts made by
the department to provide remedial and reunification services to
the parent. The court order shall state:

(i) That continuation in the home is not in the best interest
of the child and why;

(ii) Why reunification is not in the best interests of the
child;

(iii) Whether or not the department made reasonable efforts,
with the child’s health and safety being the paramount concern, to
preserve the family, or some portion thereof, and to prevent the
placement or to eliminate the need for removing the child from the
child’s home and to make it possible for the child to safely return
home, or that the emergency situation made such efforts
unreasonable or impossible; and

(iv) Whether or not the department made reasonable efforts to
preserve and reunify the family, or some portion thereof, including
a description of what efforts were made or that such efforts were
unreasonable due to specific circumstances.

(7) For purposes of the court’s consideration of the
disposition custody of a child pursuant to the provisions of this
subsection, the department is not required to make reasonable
efforts to preserve the family if the court determines:

(A) The parent has subjected the child, another child of the
parent, or any other child residing in the same household or under
the temporary or permanent custody of the parent to aggravated
circumstances which include, but are not limited to, abandonment,
torture, chronic abuse and sexual abuse;

(B) The parent has:

(i) Committed murder of the child’s other parent, guardian or
custodian, another child of the parent or any other child residing
in the same household or under the temporary or permanent custody
of the parent;

(ii) Committed voluntary manslaughter of the child’s other
parent, guardian or custodian, another child of the parent, or any
other child residing in the same household or under the temporary
or permanent custody of the parent;

(iii) Attempted or conspired to commit such a murder or
voluntary manslaughter or been an accessory before or after the
fact to either such crime; or

(iv) Committed a felonious assault that results in serious
bodily injury to the child, the child’s other parent, guardian or
custodian, to another child of the parent, or any other child
residing in the same household or under the temporary or permanent
custody of the parent; or

(v) Committed sexual assault or sexual abuse of the child, the
child’s other parent, guardian, or custodian, another child of the
parent, or any other child residing in the same household or under
the temporary or permanent custody of the parent.

(C) The parental rights of the parent to another child have
been terminated involuntarily.

(b) As used in this section, "no reasonable likelihood that
conditions of neglect or abuse can be substantially corrected"
shall mean that, based upon the evidence before the court, the
abusing adult or adults have demonstrated an inadequate capacity to
solve the problems of abuse or neglect on their own or with help.
Such conditions shall be considered to exist in the following
circumstances, which shall not be exclusive:

(1) The abusing parent or parents have habitually abused or
are addicted to alcohol, controlled substances or drugs, to the
extent that proper parenting skills have been seriously impaired
and such person or persons have not responded to or followed
through the recommended and appropriate treatment which could have
improved the capacity for adequate parental functioning;

(2) The abusing parent or parents have willfully refused or
are presently unwilling to cooperate in the development of a
reasonable family case plan designed to lead to the child’s return
to their care, custody and control;

(3) The abusing parent or parents have not responded to or
followed through with a reasonable family case plan or other
rehabilitative efforts of social, medical, mental health or other
rehabilitative agencies designed to reduce or prevent the abuse or
neglect of the child, as evidenced by the continuation or
insubstantial diminution of conditions which threatened the health,
welfare or life of the child;

(4) The abusing parent or parents have abandoned the child;

(5) The abusing parent or parents have repeatedly or seriously
injured the child physically or emotionally, or have sexually
abused or sexually exploited the child, and the degree of family
stress and the potential for further abuse and neglect are so great
as to preclude the use of resources to mitigate or resolve family
problems or assist the abusing parent or parents in fulfilling
their responsibilities to the child;

(6) The abusing parent or parents have incurred emotional
illness, mental illness or mental deficiency of such duration or
nature as to render such parent or parents incapable of exercising
proper parenting skills or sufficiently improving the adequacy of
such skills; or

(7) The battered parent’s parenting skills have been seriously
impaired and said person has willfully refused or is presently
unwilling or unable to cooperate in the development of a reasonable
treatment plan or has not adequately responded to or followed
through with the recommended and appropriate treatment plan.

(c) The court may, as an alternative disposition, allow the
parents or custodians an improvement period not to exceed six
months. During this period the court shall require the parent to
rectify the conditions upon which the determination was based. The
court may order the child to be placed with the parents, or any
person found to be a fit and proper person, for the temporary care
of the child during the period. At the end of the period, the
court shall hold a hearing to determine whether the conditions have
been adequately improved and at the conclusion of the hearing shall
make a further dispositional order in accordance with this section.